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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

16 FLRA No. 120
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3369, AFL-CIO
Union
and
SOCIAL SECURITY ADMINISTRATION,
NEW YORK REGION
Activity
Case No. O-AR-681
ORDER DISMISSING EXCEPTIONS
This matter is before the Authority on exceptions to the award of
Arbitrator Daniel G. Collins filed by the Agency under section 7122(a)
of the Federal Service Labor-Management Relations Statute and part 2425
of the Authority's Rules and Regulations. For the reasons that follow,
the Authority is without jurisdiction to review the Agency's exceptions,
and therefore they must be dismissed.
The dispute in this matter concerns the grievant's reduction-in-grade
from GS-4 to GS-3. The grievant's position of mail and supply clerk,
GS-4, had been downgraded as a result of position reclassification to
GS-3. The incumbents of the mail and supply clerk position, including
the grievant, were offered training for a new GS-4 position. The
grievant however signed a statement stating that he did not wish to
assume the duties of the new position and he understood that he would be
placed in the GS-3 position with a resulting loss of pay. Thereafter,
the grievant was "change(d) to (a) lower grade" with the personnel
action stating that it was at the grievant's request. A grievance was
filed and submitted to arbitration claiming that the grievant was not
demoted at his own request and that therefore he was entitled to have
received grade and pay retention benefits under 5 U.S.C. chap. 53,
subchap. VI /1/ as a result of the reclassification action. The
Arbitrator determined that the grievant's demotion was not at his own
request within the meaning of section 5362(d) and 5 CFR 536.207(a) /2/
and ordered that the grievant be accorded retroactively those rights for
a demotion not at his own request.
The Authority has held that a reduction-in-grade is a matter covered
under 5 U.S.C. 7512 /3/ and that therefore an award relating to a
reduction-in-grade is a matter described in section 7121(f) of the
Statute /4/ as to which no exceptions can be filed with the Authority
under section 7122(a). E.g., Veterans Administration, Medical Center,
Chillicothe, Ohio and American Federation of Government Employees, Local
1631, AFL-CIO, 15 FLRA No. 92 (1984). At the same time the Authority
and the courts have recognized that under 5 U.S.C. 5366(b)(1) the
reduction-in-grade action which is the basis of an employee's
entitlement to grade and pay retention benefits is not grievable under a
grievance procedure negotiated under the Statute or appealable under
statutory appeal procedures. San Antonio Air Logistics Center (AFLC),
Kelly Air Force Base, Texas and American Federation of Government
Employees, AFL-CIO, Local 1617, 10 FLRA 157 (1982); Atwell v. MSPB, 670
F.2d 272 (D.C. Cir. 1981). The court in Atwell specifically addressed
the reconciliation of section 7512 and 5366 with respect to a
reduction-in-grade. The court reconciled these provisions by concluding
that only reductions-in-grade for which grade and pay retention benefits
are provided are not appealable or grievable under section 5366(b) and
that a reduction-in-grade without grade and pay retention benefits is a
matter covered under section 7512. In terms of this case with the
grievant having been reduced-in-grade without the provision of grade and
pay retention benefits, the Authority finds that the Arbitrator's award
relates to a matter covered by section 7512. Thus, the award relates to
a matter described in section 7121(f) and therefore is an award as to
which exceptions may not be filed under the Statute. Accordingly, the
Agency's exceptions are dismissed. /5/
Issued, Washington, D.C., December 18, 1984
/s/ Henry B. Frazier III
Henry B. Frazier III, Acting
Chairman
/s/ Ronald W. Haughton
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Section 5362 provides for grade retention following a change of
positions or reclassification and section 5363 provides for pay
retention.
/2/ These provisions both provide that eligibility for grade and pay
retention benefits ceases when an employee is demoted at the employee's
own request.
/3/ Section 7512 enumerates the actions covered under 5 U.S.C. chap.
75, subchap. II.
/4/ Section 7121(f) pertinently provides:
In matters covered under section 4303 and 7512 of this title
which have been raised under the negotiated grievance procedure in
accordance with this section, section 7703 of this title
pertaining to judicial review shall apply to the award of an
arbitrator in the same manner and under the same conditions as if
the matter had been decided by the Board.
/5/ The Agency has also filed a request for a stay of the award under
part 2429 of the Authority's Rules and Regulations. In view of this
decision, the Agency's request is likewise dismissed.